UNCONVENTIONAL WAR.(The Talk of the Town)(abuse of prisoners by American military at Abu Ghraib is part of a pattern of contempt for international law and judicial process that stemmed from the top of the Bush administration)

One passage of the Declaration of Independence which seldom gets quoted in Fourth of July oratory is the final item on the long list of George III's "injuries and usurpations." It's the bit where the delegates to the Continental Congress accuse the King of Great Britain of endeavoring "to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions." Like the ideologues of 2004, the revolutionaries of 1776 had less than perfect empathy for the unruly, alien culture upon which they were forcibly conferring the benefits of enlightened Christian civilization. (Their plea, however, was different: Don't bring 'em on.)

The Declaration's invocation of the Indians' alleged "rule of warfare" suggests that there were other, better such rules. So there were, arguably, but they took the forms of widely varying custom, of unwritten codes of gentlemanly conduct and honor, and of national laws regulating national armies. The codification of rules of warfare into laws of war--that is, into formal, written, supposedly binding international agreements--was a product of the nineteenth century. It arose from the same can-do spirit of the age as did the invention of mechanized wars fought by huge conscript armies. The visionary behind that humanitarian effort--its Napoleon--was a young Swiss businessman named Henri Dunant, who, in 1859, witnessed the aftermath of the Battle of Solferino, fought in northern Italy between the French and the Austrians. So horrified was Dunant by the sufferings of the wounded, thousands of whom died of injuries that could have been treated if there had been anyone to treat them, that, in short order, he founded what would become the International Committee of the Red Cross and convened an international conference to draft a new kind of universal treaty. The result, in 1864, was the Convention for the Amelioration of the Condition of the Wounded in Armies in the Field--the first Geneva Convention. By 1867, it had been ratified by all the great powers of Europe. The United States did not ratify it until 1882, but in 1863 President Lincoln's War Department had drawn up its own set of rules, which anticipated many of the provisions not only of Dunant's Convention but also of the revised and extended versions of 1906 and 1929. The four Geneva Conventions that are in effect today--covering the treatment of the wounded on land and at sea, prisoners of war, and civilians in time of war--were drafted in 1949, in the aftermath of the Second World War. Some two hundred countries have ratified them, including all the members of the United Nations.

There is something a little unsettling about the suggestion that war is just another routine human activity, like driving or stock trading, that needs to be conducted according to the rules lest someone get hurt. Baroness Bertha von Suttner, the 1905 Nobel Peace laureate, once remarked that improving the laws of war was like regulating the temperature while boiling someone in oil. Yet the Geneva Conventions have been surprisingly successful, given that the activity they regulate is in many ways inherently lawless. The reason is not just that gentlemen prefer to slaughter each other in the most ethical way possible. To the extent that the Conventions have been observed, they have been observed mainly because it was in the interest, mutual or individual, of warring entities to observe them. If you took their soldiers prisoner, they might take yours; and if you tortured theirs they might torture yours. If you made a habit of torturing and killing enemy prisoners, then enemy soldiers and enemy units would be reluctant to surrender. As long as the other side was still strong ...